Letter to a Rabbi: Privately Grown Fruit in the Public Domain

July 20, 2016

Sir,

Concerning the taking of grapes growing on a vine standing in private property but jutting out into the public domain. Can passerby eat of the fruit as a snack? I formulate the question that way because I will not yet approach the issue of separating tithes, etc. from those fruits.

Now, my goal in writing this is to show that the answer that I have heard to above question, namely “yes,” fits with the way Rabbi Joseph Karo understood the relevant talmudic sources, and can be and has been relied upon in practice.

The discussion in Bava M’tzi’a 107a (“R’ Judah said to Rabin b. R’ Nahman”) concerning a fruit tree close to or on the border between two private domains seems to indicate that the halacha is as Maimonides rules in Neighbors 4:9, that the owners of the domains both have rights to the fruits.This ruling is quoted verbatim in Hoshen Mishpat 155:29 and in 167:2, but in the latter case, note that the Rema adds that if the tree is actually standing in the property of one but only has branches jutting into the domain of the other, the fruit belong entirely to the one in whose domain the tree stands. We see that the Rema makes a distinction between a tree “on the border” and one that is certainly not. The fruit of the former is “split” among the owners of the domains, whereas the latter belongs entirely to the owner of the tree. We also see that Maimonides and the Shulhan Aruch make no such distinction.

The Vilna Gaon writes that the source for the Rema’s distinction is Bava Bathra 27b, which was first brought into the discussion by the Tosafists. The Tosafists say that in the case on Bava M’tzi’a 107a, it can not be that if a tree is standing entirely within someone’s domain, then the neighbor should have a right to any of the fruit on the branches that cross the border, although Rashi seems to understand that it can be. The Gemara in Bava Bathra 27b introduces the idea that a tree feeds from the ground within a 16 cubit (that would be well over 20 feet!) radius of its trunk. If the border between two private domains is within that radius, then the tree would feed from both sides of the border. The Tosafists seem to understand the second (and presumably halachically accepted) version of Rabbi Yohanan’s subsequent statement as meaning that the one in whose domain the tree stands is not only not considered a “thief” for having his tree draw from the property of others, all of the tree’s fruits, even those that grow on branches jutting over the border into the domain of the other, are his to the extent that he brings bikkurim from them, and that is a “stipulation of Joshua.” If he brings from all of the tree’s fruit as bikkurim, they must all be his, and therefore, any tree under discussion on Bava M’tzi’a 107b must practically be on the border for us to entertain that the owner of the other domain has a right to some of the fruit.

I believe that Rashi, Maimonides, and the Shulhan Aruch do not subscribe to the Tosafists’ and Rema’s distinction because they believe that Bava Bathra 27b is not discussing who has the legal right to the fruits (possession, etc.), but rather is pointing out that even though the fruits are technically to be divided between the owners of both domains because the border is within the tree’s 16-cubit radius, only the one in whose domain the trunk is standing may bring bikkurim, and that is the novelty of Joshua’s stipulation. This seems to be way Maimonides rules in his own Bikkurim 2:11. As for the law concerning who can bring of those fruits as bikkurim, we have seen from the first chapter of Tractate Bikkurim that the standard of ownership for that law is much higher. It is not sufficient that the fruit be legally his, even to the extent that he must be the one to tithe that fruit. Rather, the fruit also has had to grow on “his” land, and therefore, in the eyes of the Shulhan Aruch, et al., any argument for or against ownership brought from sources specifically discussing bikkurim should be irrelevant to our question.

This concerns a tree that approaches the border of another individual. As for a privately owned tree whose branches jut into the public domain, the last Mishna in Bava Bathra Chapter 2 (also on 27b) mentions the right of individuals to even cut down said branches in order to make room for their passing beasts. This is codified in Torts 13:26. Now, what if those branches have fruit on them? We find nowhere in the early sources that the cutter should be concerned or liable for the loss of value to the tree or the destruction of its fruit. For example, why do we not find that the owner of the tree can demand that the branches only be cut once its fruits have ripened? Destroying the branches before they ripen will of course make them worthless. Similarly, we do not find that the cutter must then trouble himself to go and gather whatever fruit there may have been and bring it to the owner. The right of any member of the public to destroy those branches seems to indicate that the branches and what grows on them are in his “possession.” This halacha is also brought in Hoshen Mishpat 417:4, where the author also mentions that the owner of the tree is not even given notification that branches of his tree are to be cut down.

However, the Shulhan Aruch, (Hoshen Mishpat 260:6) in discussing lost and found property, gives a number of cases whereby ownership of a found item can be assumed due to the item’s location:

“A fig tree that leans into the [public] path and figs were found underneath it: they are permitted [to the finder] because the owner of the tree despairs of recovering them because figs and the like become ruined when they fall, but olives and carobs and the like would be forbidden [under similar circumstances]…”

This law, although it would allow for taking grapes that had already fallen (I am assuming that grapes are fig-like in their susceptibility to spoilage) does not allow for taking all types of fruits, and neither figs or the like that are still attached. The status of fruit is contingent on the owner’s despair or allowance, implying that if neither are present, the fruit are entirely his. However this rule also leaves open a large theoretical door for societal allowance and/or “Law of the Land,” i.e., if societal conventions or state law would declare any and all such fruits as free for the taking, then even if an owner had specified intent not to allow others to take of those fruits, others would be allowed to. Note also the corresponding passage in the Concise Code of Jewish Law 182:15, where the standard for passerby having the right to take of the fruit is even lower: If they are the type of fruit that fall down and become ruined, or if the animals that frequent the place can eat them. This would seem to be the basis for the rule that I was taught, namely, that in our communities, the grapes etc. that grow from private yards but are in practice within the public domain, may be taken and eaten by passerby, because if they don’t, the birds and lizards will.

Further, and to me this is the most important part, I do not believe that this law (Hoshen Mishpat 260:6) is discussing our case at all. Notice that it is included here, and in MT Theft and Found Property 15:16 concerning exactly that: lost and found property. See the source discussion, Bava M’tzi’a 21a-b, which is less about assuming that these fruits fell right from the branches above them, but more about determining that because this fig tree (or vine) is adjacent to the public domain, it indicates that those figs on the street are some of those that the owner had already picked and gathered from that very tree, and the novelty of the teaching is that the right of a finder to keep those fruits would depend on the hardiness of the fruit, but if we were discussing fruit that was actually growing or had grown over the border and in the public domain, then those are not owned by the owner of the tree. Interpreting the Gemara, Maimonides, and the Shulhan Aruch this way avoids a contradiction to which I alluded earlier: If a passerby were sometimes within his rights to destroy those branches and their fruits, why would he suddenly have to treat those fruits as owned by someone else?